DISTRICT COURT OF QUEENSLAND
CITATION: | Mak v The Queen [2015] QDC 188 |
PARTIES: | TSZ HONG MAK v THE QUEEN |
FILE NO/S: | 1242/12 |
DIVISION: | Criminal |
PROCEEDING: | Section 590AA Criminal Code (Qld) |
ORIGINATING COURT: | District Court at Queensland |
DELIVERED ON: | 31 July 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 July 2015 |
JUDGE: | Farr SC DCJ |
ORDER: | 1. The application is dismissed. 2. The Crown is permitted to lead evidence of the police interview at the applicant’s trial. |
CATCHWORDS: | CRIMINAL LAW- Evidence - Application under s 590AA of the Criminal Code to exclude record of interview in the exercise of discretion - where the applicant submitted he was suffering from auditory hallucinations - where it was the applicant’s evidence that he heard a voice which he believed to be the voice of God telling him what to say. Criminal Code 1899 (Qld) Evidence Act 1977 (Qld) R v Isequilla [1975] 1 WLR 716 R v Swaffield (1998) 192 CLR 159 R v W [1988] 2 Qd R 308 Sinclair v The King (1946) 73 CLR 316 |
COUNSEL: | D R Gates for the applicant |
SOLICITORS: | Bosscher Lawyers for the applicant |
The application
This is an application pursuant to s 590AA of the Criminal Code (Qld) seeking a pre-trial ruling to exclude an interview, conducted by police officers Senior Constable Grant Hughes and Senior Constable Tony Heptinstall with the applicant on 11 July 2011, in the exercise of the judicial discretion.
The offence
The applicant is charged on the indictment with one count of possession of child exploitation material on 26 June 2011 pursuant to s 228D of the Criminal Code (Qld).
The facts
The allegations are:
(a) on 26 June 2011 the applicant attended the business “Computer Alliance” at Mount Gravatt at about 11.30 a.m. and checked in a black “Soprano” computer tower for repair (with associated hardware) due to it being inoperable;
(b) the applicant had purchased the computer system from that business in 2008;
(c) a computer repair technician, while working on the applicant’s computer, needed to clean a virus from the computer system and so had to check files that might need to be retained during a required repair operation;
(d) the technician opened a folder on the computer and located images alleged to be Child Exploitation Material;
(e) the computer was turned off and isolated, and subsequently the Queensland Police Service were advised;
(f) on 4 July 2011 police attended the business and seized the computer tower and the associated hardware components. A subsequent forensic examination conducted by police found classified Child Exploitation Material on a hard drive of the computer system;
(g) a search warrant was executed at the applicant’s residence on 11 July 2011 (nothing further was located), and the defendant was arrested and transported to police headquarters where an interview…
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- AGLC
- Mak v The Queen [2015] QDC 188
- Case
- [2015] QDC 188
- Decision Date
CaseChat Overview and Summary
The court examined the criteria for exclusion under s 590AA of the Criminal Code and considered relevant case law, including R v Isequilla, R v Lee, R v Swaffield, and Sinclair v The King. The court found that the applicant's evidence of auditory hallucinations was not sufficient to meet the criteria for exclusion under s 590AA. The court noted that the applicant's evidence was not corroborated by any independent evidence and that the police had taken steps to ensure that the applicant understood the questions being asked and could provide informed answers. The court also noted that the applicant had not sought a medical examination or legal advice before the interview and that it was reasonable for the police to proceed with the interview despite the applicant's condition.
In light of the above, the court dismissed the applicant's application to exclude the record of the police interview. The court found that the record was admissible as evidence at the applicant's trial. The court noted that the applicant's auditory hallucinations did not render the interview unfair or unreliable, and that the police had taken reasonable steps to ensure that the applicant could provide informed answers. The court also noted that the applicant had not sought medical or legal assistance before the interview, and that it was not reasonable to expect the police to have done so on his behalf. The court concluded that the record of the police interview should be admitted as evidence at the applicant's trial.
Orders
Orders of the court
1. The application is dismissed.
2. The Crown is permitted to lead evidence of the police interview at the applicant’s trial.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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